December 31, 2008

General Hayden on Search and Seizure

Almost three years ago, General Michael Hayden (then Deputy Director for National Intelligence, formerly NSA Director, now CIA Director) had a famous exchange with Jonathan Landay of Knight-Ridder (now McClatchy) about the US constitution’s 4th amendment ensuring that search and seizure requires a warrant (or doesn’t, depending on your point of view).

At the time, the MSM largely ignored the story, although Hayden was criticised by outlets like FAIR, the Huffington Post, Editor and Publisher and Countdown with Keith Olbermann for his apparent ignorance of the law.

However, I have been looking at some of Hayden’s statements for a while now (in particular his claim about the NSA’s investigation of its failure before the USS Cole bombing) and I have come up with a completely different theory, based on how Hayden expresses himself and the little omissions and shifts in meaning he uses: Hayden knew exactly what the law was, but he was saying the fourth amendment does not apply to the NSA in the way we all think it does.

Let’s refresh our memory by looking at the transcript:

LANDAY: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —

GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.

LANDAY: But the —

GEN. HAYDEN: That’s what it says.

LANDAY: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

LANDAY: But does it not say probable —

GEN. HAYDEN: No. The amendment says —

LANDAY: The court standard, the legal standard —

GEN. HAYDEN: — unreasonable search and seizure.

LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA court, my understanding is, would not give you a warrant if you went before them and say “we reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “we have probable cause.”

And so what many people believe — and I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear — and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me — and I’m not a lawyer, and don’t want to become one — what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is “reasonable.” And we believe — I am convinced that we are lawful because what it is we’re doing is reasonable.

This is the text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Although many people assumed Hayden was ignorant of the law, my impression reading this exchange is that the legal opinion on which Hayden’s position is based–the “authorization” he refers to–must re-interpret the Fourth Amendment in a radical way. Obviously, I can’t tell you what this authorization says for sure, but, based on the exchange, it is not so hard to get pointed in the right direction.

The fourth amendment has two parts, “The right of the people … shall not be violated,” and “no Warrants shall issue …” I’m no constitutional scholar, but I’ve always understood that these two parts are linked. Unreasonable searches and seizures are banned and a search and seizure only becomes reasonable if a warrant is issued based on probable cause.

However, that’s not exactly what the text of the amendment says. It says that there shall be no unreasonable searches and seizures and that the issue of a warrant is conditional on probable cause. If you decouple the first part of the Amendment from the second, you suddenly have a situation where you need probable cause for a warrant, but getting a warrant is optional for a search and seizure, which now only has to be reasonable.

I can imagine that a constitutional expert reading this would be horrified (or amused) by this and could cite a string of cases that say the exact opposite of the interpretation I outlined above. I would like to emphasise two things: first, this is not my opinion about the real meaning of the Fourth Amendment; I am merely speculating on what Hayden meant based on the brief exchange he had with Landay. Second, Hayden refers to an “authorization” and approval from the attorney general. I don’t know exactly what authorization he is referring to, although there is one concerning the NSA issued by Office of Legal Counsel lawyer John Yoo that seems related, at the least. Remember that John Yoo wrote a number of controversial memos after 9/11, saying there was no limit to the president’s authority to wage war, the Fourth Amendment does not apply to domestic military operations, courts have no jurisdiction over detainees in Guantanamo and international law does not bind the US in the GWOT. Could John Yoo have re-interpreted the Fourth Amendment to allow the NSA to gather information on US persons without a warrant? Well, I guess he could.

It is obviously hard to divine exactly how Yoo could have arrived at this position. However, what struck me is that Hayden said “search and seizure” three times in the exchange, although seizure is irrelevant to what the NSA does in the sense that the NSA does not prevent a party subject to surveillance from receiving the communications it monitors. I couldn’t help but think that Hayden’s rationale was somehow bound up in an argument that runs along these lines: if you don’t seize anything, and don’t intend to, then the Fourth Amendment doesn’t apply, or at least it only applies in some altered way.

On its own, I don’t think that would be enough, but throw in the GWOT, the fact that the NSA is part of the military, and combine it with some of Yoo’s other ideas, like the Fourth Amendment’s non-application to domestic military operations, and, to me, that is as reasonable guess as any about what Hayden’s authorization said, and still says.

Last point: it seems to me that Hayden knew exactly what he was talking about, but neither Landay nor the subsequent commentators fully understood what he was saying (how could they have guessed this in early 2006?), because Hayden did not want them to understand it. If they had, then there really would have been a storm. Like I said at the beginning, this is the way Hayden talks. He makes a statement that means A, but, given the circumstances, seems to mean B. Everybody else thinks B, Hayden knows they do, but takes no steps to correct the misimpression, because creating that misimpression was his goal all along.

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Excellent post, Kevin. Not only is your analysis insightful, but your post is exactly the kind of thing I wanted to create this blog to handle. I just hope that the new administration will have people in charge of the Justice Department, the NSA, DHS, and so forth who actually respect the law instead of find convoluted ways to avoid and ignore it.